Zucht v. King, 260 U.S. 174 (1922)

260 U.S.
174
43 S.Ct. 24
67 L.Ed. 194
ZUCHT
v.
KING et al.
No. 84.
Argued Oct. 20, 1922.
Decided Nov. 13, 1922.
Mr. Don A. Bliss, of San Antonio, Tex., for plaintiff in error.

Messrs. R. L. Ball and A. W. Seeligson, both of San Antonio, Tex., for
defendants in error.
Mr. Justice BRANDEIS delivered the opinion of the Court.
Ordinances of the city of San Antonio, Texas, provide that no child or other
person shall attend a public school or other place of education without having
first presented a certificate of vaccination. Purporting to act under these
ordinances, public officials excluded Rosalyn Zucht from a public school
because she did not have the required certificate and refused to submit to
vaccination. They also caused her to be excluded from a private school.
Thereupon Rosalyn brought this suit against the officials in a court of the state.
The bill charges that there was then no occasion for requiring vaccination; that
the ordinances deprive plaintiff of her liberty without due process of law, by, in
effect, making vaccination compulsory; and also that they are void, because
they leave to the board of health discretion to determine when and under what
circumstances the requirement shall be enforced, without providing any rule by
which that board is to be guided in its action, and without providing any
safeguards against partiality and oppression. The prayers were for an injunction
against enforcing the ordinances, for a writ of mandamus to compel her
admission to the public school, and for damages. A general demurrer to the bill
of complaint was sustained by the trial court; and, plaintiff having declined to
amend, the bill was dismissed. This judgment was affirmed by the Court of
Civil Appeals for the Fourth Supreme Judicial District. 225 S. W. 267. A
motion for rehearing was overruled, and an application for a writ of error to the
Supreme Court of Texas was denied by that court. A petition for a writ of
certiorari filed in this court was dismissed for failure to comply with rule 37 (37
Sup. Ct. v) 257 U. S. 650, 42 Sup. Ct. 53. The case is now here on writ of error
granted by the Chief Justice of the Court of Civil Appeals. It is assigned as
error that the ordinances violate the due process and equal protection clauses of
the Fourteenth Amendment, and that as administered they denied to plaintiff
equal protection of the laws.
2
The validity of the ordinances under the federal Constitution was drawn in
question by objections properly taken below. A city ordinance is a law of the
state, within the meaning of section 237 of the Judicial Code, as amended
(Comp. St. 1214), which provides a review by writ of error where the validity
of a law is sustained by the highest court of the state in which a decision in the
suit could be had. Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 555, 34
Sup. Ct. 364, 58 L. Ed. 721. But, although the validity of a law was formally
drawn in question, it is our duty to decline jurisdiction whenever it appears that
the constitutional question presented is not, and was not at the time of granting
the writ, substantial in character. Sugarman v. United States, 249 U. S. 182,
184, 39 Sup. Ct. 191, 63 L. Ed. 550. Long before this suit was instituted,
Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3
Ann. Cas. 765, had settled that it is within the police power of a state to provide
for compulsory vaccination. That case and others had also settled that a state
may, consistently with the federal Constitution, delegate to a municipality
authority to determine under what conditions health regulations shall become
operative. Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 30 Sup. Ct.
301, 54 L. Ed. 515. And still others had settled that the municipality may vest
in its officials broad discretion in matters affecting the application and
enforcement of a health law. Lieberman v. Van de Carr, 199 U. S. 552, 26 Sup.
Ct. 144, 50 L. Ed. 305. A long line of decisions by this court had also settled
that in the exercise of the police power reasonable classification may be freely
applied, and that regulation is not violative of the equal protection clause
merely because it is not all-embracing. Adams v. Milwaukee, 228 U. S. 572, 33
Sup. Ct. 610, 57 L. Ed. 971; Miller v. Wilson, 236 U. S. 373, 384, 35 Sup. Ct.
342, 59 L. Ed. 628, L. R. A. 1915F, 829. In view of these decisions we find in
the record no question as to the validity of the ordinance sufficiently substantial
to support the writ of error. Unlike Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup.
Ct. 1064, 30 L. Ed. 220, these ordinances confer not arbitrary power, but only
that broad discretion required for the protection of the public health.
The bill contains also averments to the effect that in administering the
ordinance the official have discriminated against the plaintiff in such a way as
to deny to her equal protection of the laws. These averments do present a

substantial constitutional question. Neal v. Delaware, 103 U. S. 370, 26 L. Ed.
567. But the question is not of that character which entitles a litigant to a review
by this court on writ of error. The question does not go to the validity of the
ordinance; nor does it go to the validity of the authority of the officials.
Compare United States v. Taft, 203 U. S. 461, 27 Sup. Ct. 148, 51 L. Ed. 269;
Champion Lumber Co. v. Fisher, 227 U. S. 445, 33 Sup. Ct. 329, 57 L. Ed.
591; Yazoo & Mississippi Valley R. R. Co. v. Clarksdale, 257 U. S. 10, 16, 42
Sup. Ct. 27, 66 L. Ed. 104. This charge is of an unconstitutional exercise of
authority under an ordinance which is valid. Compare Stadelman v. Miner, 246
U. S. 544, 38 Sup. Ct. 359, 62 L. Ed. 875. Unless a case is otherwise properly
here on writ of error, questions of that character can be reviewed by this court
only on petition for a writ of certiorari.
4
Writ of error dismissed.

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260 U.S.

Mr. Don A. Bliss, of San Antonio, Tex., for plaintiff in error.

to deny to her equal protection of the laws. These averments do present a

Writ of error dismissed.

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